No Oral Modification Clauses Mean What They Say

Will an oral agreement override a written one that expressly […]

Author: Joanne Clarke

Tags: Court Decision, No Oral Modification Clause, NOM, Oral Agreement, Oral Modification

11/14/2024

The Highest UK Court Reviews the Law on Penalties

A penalty is now to be regarded as: “a secondary […]

Author: Victoria Tyson

Tags: Court Decision, Damages, Law, Law on Penalities, penalties, Penalty, Supreme Court

11/13/2024

The Problem with Enforcing Arbitration Awards that have been Annulled

The purpose of the 1958 New York Convention is to […]

Author: Victoria Tyson

Tags: annulled award, Arbitral Award, award, Court Decision, Enforcement, international arbitration, International Enforcement

The Dangers of Employer Set Off in your FIDIC Contract: Suspension and Termination

If an Employer sets off certified but unpaid sums without following Sub-Clause 2.5, it may breach contract terms under FIDIC 1999. This article explores whether Employers can bypass the Engineer’s role and why the clause’s wording is crucial to both Contractors and Employers.

Author: Victoria Tyson

Tags: contractor, Contractor Suspension, Contractor Termination, Employer, Employer Set-Off, Interim Payment Certificate, IPC, Set-Off, Suspension, termination

FIDIC Sub-Clause 20.5 – A Condition Precedent to Arbitration

The 1999 FIDIC forms of contract contain a number of […]

Author: Victoria Tyson

Tags: Amicable Settlement, Condition Precedent, DAB, Dispute, dispute adjudication board, NOD, Notice of Dissatisfaction, Settlement

FIDIC Silver Book – Payments Due Shall Not Be Withheld… Really?

There is a substantial difference between the payment provisions of […]

Author: Victoria Tyson

Tags: costs, Court Decision, Damages, Delay, Interim Payment Certificate, IPC, payment, Set-Off

2017 Suite: Commentary on Clause 01.15 – Limitation of Liability

Clause 1.15, previously in Sub-Clause 17.6 (1999 Edition), is now separated from Risk and Responsibility. It exempts parties from liability for loss, including loss of use, profit, or contracts, with exceptions for certain sub-clauses, notably Sub-Clauses 8.8 and 13.3.1(c).

Author: Victoria Tyson

Tags: costs, Damages, Delay, Exemption, Exemption from Liability, liability, Limitation, Limitation of Liability

2017 Suite: Commentary on Clause 14 -Contract Price and Payment

Clause 14 outlines payment, certificates, and release from liability. While the methodology remains unchanged, procedural adjustments may delay payments but aim for prompt claim resolution. Some changes benefit contractors: e.g. claims are addressed during or shortly after the contract period.

Author: Victoria Tyson

Tags: contract, Contract Price, costs, Delay, guarantee, interim payment, Interim Payment Certificate, IPC, payment

2017 Suite: Commentary on Clause 13 – Variations and Adjustments

Clause 13 clarifies the Engineer’s power to vary, allowing contractors to object to unforeseeable variations. Significant limitations include objections for health, safety, and environmental impacts. Variations must align with Employer’s Requirements, and supplemental agreements may be needed for significant changes.

Author: Victoria Tyson

Tags: Adjustments, Delay, Time, variation, Variations

2017 Suite: Commentary on Clause 12 – Tests after Completion

Clause 12 covers Tests after Completion, often required for process and power contracts. Tests are conducted by the Employer, with significant changes including competent staff requirement, testing per Employer’s Requirements and O&M Manuals, and new provisions for test timing and notice.

Tags: completion, contractor, Delay, Employer, Test after Completion, Test on Completion

2017 Suite: Commentary on Clause 11 – Defects After Taking Over

Clause 11 has been clarified, with detailed provisions for notices and periods, DNP for Parts, and clearer time limits. Changes include risk allocation, compensation for denied access, and limited liability for Plant damage. Some cross-references may cause confusion.

Author: Victoria Tyson

Tags: Cost, Damage, Defects, Defects after Taking Over, Delay, Taking Over

2017 Suite: Commentary on Clause 07 – Plant, Materials and Workmanship

Clause 7 of FIDIC 2017 mandates specified quality for plant, materials, and workmanship, requiring defect rectification. It covers testing, inspection, and rejection to ensure compliance. All sub-clauses have changed, with several significant modifications.

Author: Victoria Tyson

1999 Suite: Commentary on Clause 16 – Suspension and Termination by Contractor

Clause 16 addresses suspension and termination by the Contractor, including rights to suspend work, grounds for termination, cessation of work, and payment on termination. It specifies notice periods, conditions for immediate termination, and entitlements following termination.

Author: Victoria Tyson

Tags: Cessation of Work, contractor, Contractor Suspension, Contractor Termination, Payment on Termination, Suspension, termination

1999 Suite: Commentary on Clause 12 – Measurement and Evaluation

FIDIC 1999 is a re-measurement contract, with the Employer bearing the risk of quantity variations. Clause 12 covers measurement, evaluation of rates, and valuation of omissions. It lacks a standard measurement method, which has been criticized.

Author: Victoria Tyson

Tags: costs, Measurement, Measurement of Works, Price, Re-Measurement, Works, Works Pricing

1999 Suite: Commentary on Clause 09 – Tests on Completion

Clause 9 covers Tests on Completion, requiring the Contractor to give notice when ready to carry out Tests on Completion, addressing delays by either party, retesting after failure, and handling failures to meet contract requirements after retesting.

Author: Victoria Tyson

Tags: completion, contractor, Delay, Employer, Test on Completion

Cofely v Knowles – From Appointment to Disappointment

There have been two High Court cases within the last […]

Author: Victoria Tyson

Tags: Court Decision, Nominating Tribunal Members, Nomination Process, Tribunal, Tribunal Members

BoQ Rates Neither ‘Immutable nor Sacrosanct’

The Hong Kong Court of Appeal now supports engineers requesting evidence of original tender build-up and disallowing loaded rates if substantial quantity differences justify it. This article explores that new guidance, which finds contract rates to be neither immutable nor sacrosanct.

Author: Victoria Tyson

Tags: Book of Quantities, BoQ, BoQ Rates, Contract Rates, Court Decision, Price-Loading

1999 Suite: Commentary on Clause 04 – The Contractor

Clause 4 of the FIDIC Red Book 1999 consolidates various Contractor obligations, covering 24 topics. It includes general duties and references other significant obligations scattered throughout the Contract, such as communications, assignment, document care, compliance with laws, and time for completion.

Author: Joanne Clarke

2017 Suite: Commentary on Clause 05 – Design

Clause 5 changes include specifying designer qualifications, moving part of Sub-Clause 5.1 to 1.9, changing “approval” to “No-objection” in Sub-Clause 5.2, and introducing a new procedure for addressing design errors in Sub-Clause 5.8.

Author: International Construction Team

2017 Suite: Commentary on Clause 04 – The Contractor

Clause 4 changes include defining ‘fitness for purpose’ in Employer’s Requirements, adjusting the Performance Security, handling communications by the Contractor’s Representative, setting subcontracting limits, enhancing health and safety obligations, redefining unforeseeable conditions, and increasing Contractor risk for access routes.

Author: International Construction Team

Are ‘binding’ DAB decisions enforceable?

Opinions on enforcing ‘binding’ DAB decisions vary. Some arbitrators support enforcement, while others, including the Singapore Court of Appeal, oppose it. This article considers case law addressing both sides of the argument and the issues that they raise.

Author: Joanne Clarke

Tags: DAB

FIDIC’S procedures for the appointment of a DAB need improvement

If the parties to a FIDIC contract cannot agree on […]

Author: Victoria Tyson

Tags: Adjudication Board, Appointment, DAAB, DAB, DAB Member, Dispute, dispute adjudication board, Dispute Resolution

10/13/2024

‘Taking-Over’ in the FIDIC Red Book 1999: Common Problems

A Taking-Over Certificate in FIDIC contracts marks the handover date of Works to the Employer, who cannot use them until issued. Disputes arise in tough economies, with Employers delaying responsibility and Contractors eager to finish and reduce costs.

Author: Victoria Tyson

06/04/2024

FIDIC Dispute Board Decisions: Late for a Very Important Date?

A FIDIC dispute board has just 84 days to give […]

Author: James Reader

FIDIC Green Book 2021 – Short and Simple?

As one of the drafters of the Green Book 1999, […]

Author: Edward Corbett